'No' means 'No!': Fighting sexual harassment at the workplace

According to a recent report in the Mumbai Mirror, Director Vikas Bahl, of the Queen fame, has been asked to step down as partner of Phantom Films, over allegations of sexual harassment. After the victim complained, the matter was taken up with Reliance Entertainment, with whom Phantom Films has a 50-50 joint venture. The company has been directed to set up a Committee to look into the matter, as per the Vishaka Guidelines. The report has not been confirmed yet, and the Director has denied the allegations, however the newspaper report quotes a stakeholder of the company, who has affirmed that the director is no longer with them.

Sexual harassment has always been a danger lurking in the work place. While earlier matters were kept hush-hush, nowadays, more women are speaking up. A number of high profile individuals such as former Tehelka chief, Tarun Tejpal, TYF CEO, Arunabh Kumar, former chairman of the Intergovernmental Panel on Climate Change (IPCC) and head of TERI, RK Pachauri have also been accused of sexual harassment, and discussions around the issue are becoming more mainstream. While some companies take allegations of sexual harassment seriously, in many other cases, such as Arunabh Kumar, or in the case of Greenpeace India’s initial lackadaisical handling of a complaint against its managers, it is often the victim who gets questioned and threatened.

With more women joining the work force, there is a need to understand what constitutes sexual harassment and the legal recourse that has to be taken. Hence, apart from the regular questions that you would ask while seeking a job, you should also inquire about how the company would handle potential sexual harassment cases, if needed, as well. Also, both employers and employees need to be aware of the Vishaka Guidelines and the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.

We take a look at what the Guidelines are and what the law says.

The history:

The Vishaka Guidelines is a set of procedural guidelines laid down Supreme Court in 1997. The need for such Guidelines stems from 1992 when Bhanwari Devi, a social worker from Rajasthan, was brutally gang raped when she tried to intervene and stop child marriages from taking place. While Bhanwari Devi did not get justice from the Rajasthan High Court, and the rapists were allowed to go free, it spurred her to fight against injustice on women. This also led a women’s rights group, Vishaka, and four other groups to file Public Interest litigation (PIL) against the State of Rajasthan. The petition resulted in the laying down of the Vishaka Guidelines by the Supreme Court of India. The Guidelines also form the base of the current law that addresses sexual harassment at workplace.

The Guidelines:

The Vishaka Guidelines defined sexual harassment as: sexually determined behaviour (whether directly or by implication) which can be a) Physical contact and advances; b) A demand or request for sexual favours; c) Sexually coloured remarks; d) Showing pornography; e) Any other unwelcome physical, verbal or non-verbal conduct of sexual nature. The Guidelines observed that sexual harassment does not need to involve physical contact, and any act that creates a hostile environment, counts as sexual harassment.

The Guidelines placed the onus of protecting women in the workplace on the Employer, stating that “It shall be the duty of the employer or other responsible persons in work places or other institutions to prevent or deter the commission of acts of sexual harassment and to provide the procedures for the resolution, settlement or prosecution of acts, of sexual harassment by taking all steps required.” It also mandated that all companies set up a Complaints Committee to look into such grievances, which should be headed by a woman, and with not less than half its employees as women. To prevent any pressure from the senior management, the Committee should also involve a third party such as an NGO.

It adds that if a particular act amounts to an offence under the Indian Penal Code, then the employer needs to take action towards punishing the guilty. If it is not a legal offence, then the company needs to formulate mechanisms to address the complaint in a time bound manner.

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013:

In 2013, the Vishaka Guidelines was superseded by The Sexual Harassment of Women at Workplace Act. Taking forward the definition of sexual harassment from the Vishaka Guidelines, the Act states that sexual harassment violates a woman’s right to work. It further adds that actions resulting in a violation of one’s rights to ‘Gender Equality’ and ‘Life and Liberty’ are in fact a violation of the victim’s fundamental right under Article 19. Here is what you need to know about the Act:

As opposed to the Vishaka Guidelines, which looks at the traditional office set-up, the Act incudes non-traditional workplaces which involve tele-commuting, organisations, department, office, branch unit etc. in the public and private sector, organised and unorganised sectors, hospitals, nursing homes, educational institutions, sports institutes, stadiums, sports complex and any place visited by the employee during the course of employment including the transportation.

The term employee, under the Act, covers all including those who work on a regular/temporary/daily wage basis, either directly or through an agent.

The definition of ‘aggrieved woman’ is also wider under the Act, as it covers all women, irrespective of her age or employment status, whether they are working in the private or public sector, organised or unorganised, clients, customers and domestic workers too.

The Act orders that all offices or branches with a minimum of 10 employees, are required to set up Internal Complaints Committees (ICC) to investigate all complaints. Employers failing to do so are liable to pay a fine of Rs 50,000. A second instance of non compliance can lead to the revocation of the company’s license.

The ICC should be headed by a woman, with atleast one half of the total members as women. It should also include one member from non-governmental organisations or associations committed to the cause of women, or a person familiar with issues relating to sexual harassment.

The victim can approach the ICC and make the complaint in writing. If the person is unable to give in a written complaint, the Chairman, or any member of the Committee should assist the complainant in making the written complaint.

The Committee must complete the inquiry within a time frame of 90 days, and the report has to be sent to the District Officer or Employer. An action has to be taken within 60 days.

The Committee needs to file annual reports to the authorities detailing compliance measures.

The Law also provides a three month window for the victim to report any instances of sexual harassment. If there are multiple incidents, than the three months will be counted from the last incident.